Arcohe Union School District (PERB 0360E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,

Charging Party, Case No. S-CE-428

Vv. PERB Decision No. 360

ARCOHE UNION SCHOOL DISTRICT, November 23, 1983

Respondent.

ue et et et et et ee ee et Se Sine

Appearances: Janae A. Novotny, Attorney for California School
Employees Association; James P. Henke, Attorney for Arcohe
Union School District.

Before Gluck, Chairperson; Jaeger and Burt, Members.
DECISION

BURT, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by Arcohe
Union School District (District) to a proposed decision of an
administrative law judge (ALJ). The ALJ, upholding charges
filed by the California School Employees Association (CSEA),
found that, by unilaterally contracting out custodial work
formerly performed by unit employees, the District violated
subsections 3543.5(a), (b) and (c) of the Educational

Employment Relations Act (EERA).1 The District excepts to

1EERA is codified at Government Code section 3540
et seq. All statutory references are to the Government Code,
unless otherwise noted.

the ALJ's finding that the decision to contract out unit work
is a subject within scope under EERA.
We have reviewed the ALJ's decision in light of the
District's exceptions, CSEA's response thereto, and the record
as a whole and find that it should be affirmed as modified
below.
FACTS
The ALJ's findings of fact are free of prejudicial error.
Those findings, as set forth in the proposed decision, attached
hereto and incorporated by reference herein, are adopted as the
findings of the Board itself.
The relevant facts may be briefly summarized as follows:
The District is so small that CSEA's chapter there has no
officers, stewards or elected officials. It is associated with
the Galt area chapter. A bus driver and unit employee,
Linda Dulaney, serves unofficially as a "contact" for CSEA.
She makes it a practice to attend school board meetings not on
behalf of CSEA but, rather, as a parent with children in the
District. On about April 19 or 20, 1981, she noticed the
subject of contracting out custodial services on the posted
agenda for the April 21 meeting. She attended that meeting and
heard the matter discussed in open session. 	The decision to
accept the contract for custodial services was made in closed
session on April 21, 1981 by the District board of trustees.
N

Sometime after seeing the agenda item, Dulaney called CSEA
Field Representative Jim Reid regarding it. The record does
not reflect specifically when this call was made. Reid
believes that it was just prior to May 29, 1981, on which date
Reid sent a letter of protest to the District on CSEA's
behalf. The record is also silent as to the content of the
conversation between Reid and Dulaney.
The District does not routinely send CSEA copies of the
agendas of board meetings, nor did it do so respecting the
April 21, 1981 meeting. 	The District never gave CSEA specific
or general notice of its intent to contract out custodial
services, either prior to or following the firm decision to do
so on April 21, 1981.
In early April 1981, while they were strolling to the
parking lot following a negotiating meeting for a successor
agreement, District Board Member Siegalkoff asked Reid about
the general notion of contracting out custodial services. Reid
told him that it was CSEA's position that it would be unlawful
to do so, and that any such decision was subject to
negotiations. The record does not indicate that Siegalkoff
told Reid that the District was definitely contemplating a
concrete plan to contract out custodial services. 	Rather, it
appears that he made a general inquiry as to CSEA's position
regarding the general subject matter of contracting out
custodial services.
3

The District employed two classified employees funded under
the Comprehensive Education and Training Act (CETA) to perform
custodial work. 2 CETA funding for these employees ceased on
April 30, 1981. 	Without providing notice to CSEA, the
District, at a board of trustees meeting on April 21, 1981,
decided to subcontract the custodial services formerly provided
by the CETA-funded unit employees to a private concern.
DISCUSSION
The District, faced with cessation of funding for the unit
employees performing custodial work, decided to provide the
same level of custodial services it had provided prior to the
termination of the CETA-funded unit employees. 	The vehicle the
District chose to achieve this goal was to subcontract the
custodial work to nonemployees.
We hold that the general subject of subcontracting unit
work is within scope under EERA. For the reasons discussed
infra, however, we do not hold that a proposal to subcontract
custodial work per se would be negotiable.
Scope is defined at section 3543.2 of EERA. 	The California
Supreme Court has validated the Board's test for negotiability
regarding matters not specifically enumerated by the statute,
2The District excepts to the ALJ's finding that the
CETA-funded custodians were in the unit represented by CSEA.
We find that the uncontroverted testimony of CSEA Field
Representative James Reid and other record evidence, including
the unit description in the applicable collective negotiating
contract, establish that these two employees were in the unit.

as stated in Anaheim Union High School District (10/28/81) PERB
Decision No. 177. See San Mateo City School District v. PERB,
California School Employees Association v. PERB, Healdsburg
Union High School District, et al. v. PERB (May 1983) 33 Cal. 3d
850 ( Cal. Rptr ._ 	_). Consistent with the Court's decision in
Healdsburg, we apply the Anaheim test to determine the
negotiability of subcontracting unit work.
The Anaheim test provides that a subject will be found
negotiable even though not specifically enumerated in section
3543.2 if: (1) it is logically and reasonably related to
hours, wages or an enumerated term and condition of employment;
(2) the subject is of such concern to both management and
employees that conflict is likely to occur and the mediatory
influence of collective negotiation is the appropriate means of
resolving the conflict, and (3) the employer's obligation to
negotiate would not significantly abridge the employer's
freedom to exercise those managerial prerogatives (including
matters of fundamental policy) essential to the achievement of
the District's mission.
Subcontracting custodial work formerly performed by unit
employees is a subject logically and reasonably related to
wages, hours, and transfer and promotional opportunities for
incumbent employees in existing custodial classifications.
Actual or potential work is withdrawn from unit employees, and
wages and hours associated with the contracted-out work are
5

similarly withdrawn. 	Further, such diminution of unit work
weakens the collective strength of employees in the unit and
their ability to deal effectively with the employer. Such
impact affects work hours and conditions, and thus is logically
and reasonably related to specifically enumerated subjects
within the scope of representation. Rialto Unified School
District (4/30/82) PERB Decision No. 209; UAW v. NLRB (General
Motors) (D.C. 1967) 381 F. 2d 265 [64 LRRM 2489].
Thus, it is clear that subcontracting unit work satisfies
the threshold test for negotiability under Anaheim.
Management considerations are also raised by subcontracting
decisions. 	The public school employer may determine that an
outside firm can perform a particular task at a lower labor
cost than can unit personnel.
It is apparent that subcontracting the work of unit
employees is of great concern to employees and management, and
their interests will naturally be opposed on the subject so as
to make it likely that conflict will occur. Such conflict
might well be ameliorated by the mediatory influence of
collective negotiating.
The decision to subcontract the work of unit custodians did
not involve the exercise of any essential managerial
prerogative. The District, by such conduct, did not determine
that custodial services would no longer be provided. Rather,
it sought to transfer existing functions and duties from unit

employees to persons who are not employees of the District. 	No
decision as to what functions were essential to management's
mission was involved. The same functions were still being
performed, albeit by persons not employed by the District.
While sound fiscal management is a significant concern, such
concern is properly addressed at the bargaining table and is
not "an excuse to avoid the negotiating obligation entirely."
San Mateo County Community College District (6/8/79) PERB
Decision No. 94, p. 13. The requirement that the District
negotiate prior to subcontracting unit work does not abridge
the District's freedom to exercise any essential managerial
prerogative.
For the foregoing reasons, we hold that subcontracting of
unit work is a subject within the scope of representation.
Such a holding is consistent with the dicta of this Board in
Alum Rock Union Elementary School District (6/27/83) PERB
Decision No. 322, pp. 11-12. Further, the Board has expressly
so held in Healdsburg Union High School District (6/19/80) PERB
Decision No. 132, remanded in San Mateo City School District
et al. v. PERB, supra. 	There, we noted that numerous other
public jurisdictions are in accord. 3 In addition, we have
3See City of Kennewick (WA 10/5/79) 1 NPER 49-10052; City
of Waterbury (CT 12/7/79) 2 NPER 07-11010; Town of Burlington
(MA 1/24/80) 6 MLC 1795 [2 NPER 22-11015] ; Franklin School
Committee (MA 2/22/79) 5 MLC 1659 [1 NPER 22-10033]; Township
of Little Egg Harbor (1976) 2 NJPER 5; State of New Jersey (NJ
7

determined on several occasions that the analogous decision to
transfer work out of the bargaining unit is negotiable. Rialto
Unified School District, supra; Solano County Community College
District (6/30/82) PERB Decision No. 219; Alum Rock Union
Elementary School District, Supra.
The District enjoyed the prerogative to determine what
level of custodial service it would provide. It was free to
unilaterally determine that it would provide the same level of
custodial service which it provided prior to the loss of the
CETA-funded custodians. However, when it unilaterally chose
subcontracting as the vehicle for implementing that decision,
it violated the duty to negotiate in good faith with CSEA, the
exclusive representative of its classified work force. Such
unilateral action on a matter within the scope of
representation is a per se refusal to negotiate in good faith.
NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM 2177]; San Francisco
Community College District (10/12/79) PERB Decision No. 105.
In California School Employees Association v. Willits
Unified School District of Mendocino County, et al. (1966) 243
Cal. App. 2d 776 [52 Cal. Rptr. 765], the Court of Appeal for the
1/4/80) 6 NJPER 11017 [2 NPER 31-11017] ; Saratoga Springs
School District (NY 5/17/79) 12 PERB 7008 [1 NPER 33-17008] ;
Town of Rochester (NY 1/4/79) 12 PERB 4501 [1 NPER 33-14501] ;
Erie Municipal Airport Authority (PA 1/12/79) 10 PPER 10028
[1 NPER 40-10028] ; Phoenixville Area School District (PA
7/3/79) 10 PPER 15178 [1 NPER 40-10178].
8

First District, Division Three, held that under section 45103
of the Education Code (which was, at the time of the Willits
decision, section 13581), janitorial services may not be
subcontracted, but rather must be performed by a district's
classified employees.
Section 3540 of EERA provides, in pertinent part, "Nothing
contained herein shall be deemed to supersede other provisions
of the Education Code. . 	." In Healdsburg Union High School
District (6/19/80) PERB Decision No. 132, at p. 18, PERB
interpreted this language to prohibit negotiations on subjects
only where the Education Code "clearly evidences an intent to
set an inflexible standard. . . ." 	The California Supreme
Court cited this interpretation with approval in San Mateo City
School District, et al. v. PERB (1983) 33 Cal. 3d 850
[ Cal. Rptr. ], at 33 Cal. 3d 865.
Because the Education Code section requiring that custodial
services be performed by classified employees is ". 	. cast in
mandatory terms, " (Willits, supra, at 784), we find that a
proposal by the District that custodial services be
subcontracted is superseded by the "inflexible standard" of the
Education Code. 	However, the fact that a proposal to
subcontract custodial services is preempted by the Education
Code does not render the entire subject matter of
subcontracting nonnegotiable. For example, proposals which
sought to restate the prohibition against subcontracting, or to
9

broaden such prohibition, would be negotiable. In the instant
case, the District's unilateral change precluded the
Association from making any such valid subcontracting proposals.
The District's remaining exceptions amount to a contention
that CSEA waived its right to negotiate by failing to expressly
request negotiations. The ALJ found, and we agree, that CSEA
did not learn of the decision to contract out until after it
was firmly made by the District. The District's obligation to
provide notice and an opportunity to negotiate to CSEA adhered
when it decided to continue to provide the custodial services
formerly performed by the terminated CETA-funded custodians.
When it decided to unlawfully subcontract unit work, the time
for prior notice had passed.
Prior to unilaterally changing a matter within scope, a
employer has the obligation to provide the exclusive
representative of its employees with notice of, and a
reasonable opportunity to negotiate over, the contemplated
change. In order to prove that CSEA waived its right to
negotiate over the effects of the District's decision to
continue providing the custodial services formerly provided by
the CETA-funded unit employees, the District must show
demonstrative behavior on the part of CSEA waiving a reasonable
opportunity to bargain over the effects of a decision. 	San
Mateo County Community College District, supra. Here, there is
no evidence that the District provided CSEA with prior notice
of its decision to contract out custodial services.
10

The general inquiry made by Siegalkoff in early April 1981
was insufficient to place CSEA on notice that the District was
actually contemplating a concrete proposal to contract out
custodial services. General publication of the board of
trustees agenda by the posting at the school site does not
constitute effective notice to CSEA of proposed changes in
scope matters. Arvin Union School District (3/30/83) PERB
Decision No. 300, p. 10. Neither does the fact that an
employee of the District, who held no official position with
CSEA, happened to gain actual notice of the contemplated change
one or two days in advance thereof constitute notice to CSEA.
Los Angeles Community College District (10/18/82) PERB Decision
No. 252. 	The fact that CSEA did not expressly request
negotiations after the District's acceptance of the contract
proposal on April 21, 1981 does not establish a waiver of its
right to negotiate. First, it is unclear how long after the
District's action CSEA gained knowledge of it. Further, a
request for negotiations after acceptance of the proposal by
the District would have been an act of futility on the part of
CSEA, and the failure to undertake a futile act does not
constitute a waiver. Arvin, supra.
Oral Argument
The District has requested oral argument before this
Board. No reason was given by the District as to why oral
argument would be beneficial. The issues in the case are not
11

particularly novel, and the record is adequate for its
resolution. Hence, we deny the request for oral argument.
For the reasons set forth above, we affirm the ALJ's
finding that the District violated subsections 3543.5 (a) , (b)
and (c) by subcontracting custodial services formerly provided
by the terminated CETA-funded custodians, without providing
notice and a reasonable opportunity to negotiate to CSEA, the
exclusive representative of its classified employees. To
remedy the above-mentioned violation, it is appropriate that
the District be ordered to rescind the subcontract for
custodial services, thus restoring the circumstances which
existed prior to its unlawful unilateral act. The District
shall further be ordered to cease and desist from engaging in
unilateral action regarding matters within scope by
implementing any other method of providing the former level of
custodial services without furnishing prior notice and an
opportunity to negotiate in good faith to CSEA. In addition,
the District shall be ordered to post an appropriate notice to
employees.
ORDER
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Government
Code subsection 3541.5(c) , it is hereby ORDERED that the Arcohe
Union School District board of trustees and superintendent and
their respective agents shall:
12

A. 	CEASE AND DESIST FROM:
Engaging in unilateral action regarding matters within
the scope of representation by implementing any method of
providing the level of custodial services which it furnished
prior to expiration of funding for two CETA-funded custodians
in April of 1981, without furnishing notice and an opportunity
to negotiate regarding any such decision to CSEA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION TO EFFECTUATE
THE PURPOSES AND POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. 	Rescind the subcontract for custodial services
entered into with "Services Unlimited" and/or any other such
subcontracts for custodial services.
2 . 	Prepare and post, no later than thirty-five (35)
days after service of this Decision, at all work locations
where notices to employees are customarily placed, copies of
the Notice To Employees attached as an Appendix hereto, signed
by an authorized agent of the employer. Such posting shall be
maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to insure that this Notice is
not reduced in size, defaced, altered or covered by any
material.
3. 	Provide written notification of the actions taken
to comply with this Order to the regional director of the
Public Employment Relations Board, in accordance with her
instructions.
Member Jaeger joined in this Decision.
Chairperson Gluck's concurrence and dissent begins on page 14.
13

GLUCK, Chairperson, concurring and dissenting: I concur in
the majority's finding that the Education Code effectively
prohibits the subcontracting of custodial services.
Consequently, any proposal which would tend to supersede the
Code provision would not be within scope. For this reason, I
cannot find the District's refusal to submit such a proposal to
CSEA to be in violation of EERA.
However, the school board's attempt to remove custodial
work from the bargaining unit clearly raised in CSEA the right
to make any pertinent proposall which would not have the
effect of superseding the Code. In Healdsburg Unified High
School District 2
the California Supreme Court also affirmed
PERB's holding that a proposal to include in the negotiated
agreement Education Code provisions which relate to wages,
hours and negotiable working conditions is itself in scope.
The Court said at page 26:
PERB did allow negotiations which might
culminate in the inclusion of the terms
established by the Education Code within a
collectively negotiated contract. Such an
agreement would not supersede the relevant
part of the Education Code, but would
strengthen it.
The record does not reveal what proposal CSEA would have
made given the opportunity. But it is notable that CSEA argues
1
Rialto Unified School District (4/30/82) PERB Decision
No. 209.
2 (May 1983) 33 Cal. 3d 850 	Cal. Rptr.
14

two separate points: (1) Willits3 decided that the
subcontracting of custodial services is prohibited by the
Education Code, and (2) the subject of subcontracting is
negotiable. The apparent inconsistency of these two points is
easily resolved. In Healdsburg, the employee organization
(CSEA) submitted a proposal to prohibit subcontracting of
services essentially matching the characteristics described in
the Education Code provision upon which the court relied in
Willets. 4 Since CSEA cites Healdsburg here to support its
demand to negotiate, it is possible to assume that it intended
to submit a proposal to prohibit the subcontracting of the
custodial services previously performed by the CETA workers.
Whether this is the case, such a proposal - and possibly others
- would be negotiable. Since the District did not permit CSEA
to make any proposals, it breached its duty to negotiate in
good faith and violated subsection 3543.5 (c).
3California School Employees Association v. Willits
Unified School District (1966) 243 Cal. App. 2d 776 [52 Cal. Rptr.
765] .
4Administrative notice is taken of the following union
proposal set forth in the Healdsburg record:
Restriction on Contracting Out: During the
life of this agreement, the District agrees
that it will not contract out work which has
been customarily performed or is performable
by employees in the bargaining unit covered
by this agreement unless CSEA specifically
agrees to same or contracting is
specifically required by the Education Code.
15

I do not join in that part of the majority's Order which
imposes on the District an absolute prohibition against any
"unilateral action." As the majority has found, custodial work
is included in the bargaining unit and covered by provisions of
the negotiated agreement. I find nothing in the law which
would preclude the District from filling the custodial
vacancies without notice to CSEA provided it did so in
accordance with the agreement. I see no distinction between
such employer action and that involved in filling any other
vacancies in the workforce. 5
5
It is possible that some contract terms affecting CETA
workers would not be appropriate for regular classified
replacements; but such an assumption should not be the
underpinning of so conclusive a Board order.
16

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. S-CE-428, in
which all parties had the right to participate, it has been
found that the Arcohe Union School District violated the
Educational Employment Relations Act, Government Code
subsections 3543.5 (a), (b) and (c) by subcontracting unit work
without providing notice and a reasonable opportunity to
negotiate to California School Employees Association (CSEA) ,
the exclusive representative of our classified employees.
As a result of this conduct we have been ordered to post
this Notice, and we will:
A. 	CEASE AND DESIST FROM:
Engaging in unilateral action regarding matters within
the scope of representation by implementing any method of
providing the level of custodial services which it furnished
prior to expiration of funding for two CETA-funded custodians
in April of 1981, without furnishing notice and an opportunity
to negotiate regarding any such decision to CSEA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE PURPOSES AND POLICIES OF THE ACT:
Rescind the subcontract for custodial services entered
into with "Services Unlimited" and/or any other such
subcontracts for custodial services.
Dated: 	ARCOHE UNION SCHOOL DISTRICT
By
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT
BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,
Charging Party,
v .
ARCOHE UNION SCHOOL DISTRICT,
Respondent.
Unfair Practice
Case No. S-CE-428
PROPOSED DECISION
(11/22/82)
Apppearances: Janae H. Novotny, attorney, for California
School Employees Association; James P. Henke, attorney, for
Arcohe Union School District.
Before: Gerald A. Becker, Administrative Law Judge.
PROCEDURAL HISTORY
In this case the California School Employees Association
(hereafter CSEA) charges that the Arcohe Union School District
(hereafter District) unilaterally contracted out for janitorial
services without affording CSEA an opportunity to negotiate.
The charge was filed on September 14, 1981 and alleged that the
District's action violated subsections 3543.5(a) , (b) and (c)
of the Educational Employment Relations Act (EERA) . 1
An informal conference on October 29, 1981 failed to
resolve the matter and a formal hearing was held before the
1The EERA is codified at Government Code section 3540
et seq. All references are to the Government Code unless
otherwise specified.

undersigned on July 29, 1982. Briefing by the parties was
completed on November 1, 1982 and the matter submitted for
proposed decision.
FINDINGS OF FACT
CSEA is the exclusive representative of a wall-to-wall
classified bargaining unit in the District, consisting of 16
employees. Since it is so small, there are no chapter or local
officers, but rather the unit is affiliated with the larger
Galt area chapter. Linda Dulaney, a school bus driver for the
District, as well as a school parent, is the CSEA contact
person for the District.
On April 9, 1981, in an informal discussion following the
conclusion of a negotiating session, Mr. Siegalkoff, a school
board member, asked Jim Reid, the CSEA field representative,
what he thought about contracting out custodial services.
Citing the PERB decision in Healdsburg Union High School
District (6/19/80) PERB Decision No. 132, and CSEA v. Willits
Unified School District (1966) 243 Cal. App. 2d 776
[52 Cal. Rptr. 765], Reid responded that work routinely
performed by classified employees cannot be contracted out.
Reid was unsure of whether he also said that negotiations
regarding contracting out could not be included in the current
round of negotiations because no proposal on contracting out
had been sunshined. Nothing else was mentioned about
N

contracting out, including any plans the District might have
had.
CETA funding for two custodial positions ended on April 30,
1981. 	These two CETA employees were in the bargaining unit
represented by CSEA.
Instead of replacing the two employees, at an April 21,
1981 meeting, the District's governing board approved a
contract with a private concern to provide cleaning services to
the District beginning in August 1981. At a later school board
meeting in August, the starting date of the contract was
changed to September 1, 1981.
The District gave CSEA no prior notice of its intent to
contract out for cleaning services. However, Dulaney, the CSEA
contact person, attended the April 21 board meeting in her
capacity as a parent. Concerned about the board's action,
Dulaney called Reid to tell him about the board's action. On
May 29, 1981, Reid wrote the District a letter protesting the
contracting out. He stated that under the Willits decision,
supra, it was illegal for the school district to contract out
for classified services. Reid did not request to negotiate.
After the unfair practice charge was filed, the parties met
to try to resolve the matter. Although the District attempted
to characterize the two meetings as negotiations, these
meetings appeared largely to be settlement discussions and thus
will not be considered. (PERB Regulation 32176.)

ISSUES
1. Is contracting out of work previously performed by
bargaining unit members within the scope of representation?
2. Did CSEA waive its right to negotiate the contracting
out of cleaning services?
DISCUSSION AND CONCLUSIONS OF LAW
It is an unfair practice for an employer to unilaterally
change terms or conditions of employment within the scope of
representation without first giving the exclusive
representative notice and an opportunity to negotiate. Pajaro
Valley Unified School District (5/22/78) PERB Decision No. 51;
San Mateo County Community College District (6/8/79) PERB
Decision No. 94; Davis Unified School District (2/22/80) PERB
Decision No. 115.
1 . 	Contracting Out Bargaining Unit Work is Within the Scope of
Representation.
The PERB has held that the decision to contract out
bargaining unit work is negotiable. Healdsburg, supra. 2 The
PERB has reached an analogous result in other cases, holding
that transferring work out of a bargaining unit is a negotiable
matter. Rialto Unified School District (4/30/82) PERB Decision
No. 209; Solano Community College District (6/30/82) PERB
Decision No. 219.
2
The Healdsburg decision is not yet final. An appeal is
presently pending before the California Supreme Court.

Therefore, it is clear that the contracting out of the
cleaning work previously performed by the CETA employees was
within the scope of representation and therefore negotiable.
2. CSEA Did Not Waive Its Right to Negotiate.
The District asserts as a defense that since CSEA never
requested to negotiate the contracting out of cleaning work, it
effectively waived its right to negotiate.
As the PERB stated in San Mateo County Community College
District, supra, at pp. 21-22,
In order to prove that the Association waived
its right to negotiate over the changes
adopted by the District, the employer must
show either clear and unmistakable language,
Amador Valley, supra, or demonstrative
behavior waiving a reasonable opportunity to
bargain over a decision not already firmly
made by the employer. 	(Citations omitted.)
The fact that Reid did not request to negotiate after
finding out about the school board's April 21, 1981 action to
contract out cleaning services is irrelevant. The District had
already taken final action and it would have been futile to
request to negotiate afterwards. It was the District's
obligation to notify CSEA of its intentions before a firm
decision was made. Los Angeles Community College District
(10/18/82) PERB Decision No 252, at p. 19; San Francisco
Community College District (10/17/78) PERB Decision No. 105, at
p. 17.
The fact that Mrs. Dulaney was present at the school board
meeting at which the decision was made, similarly does not

indicate CSEA waived its right to negotiate. Mrs. Dulaney was
only the CSEA contact person, she had no official position such
as an officer or shop steward for CSEA. As such, she cannot be
found to have been an agent of CSEA so that her knowledge of
the change could be imputed to it. Los Angeles Community
College District, supra, at p. 17. Furthermore, she only
learned of the board's action at the time it was taken. 	This
certainly would not leave any time for CSEA to negotiate the
change before final action was taken.
3. Conclusion.
Therefore, by unilaterally contracting out bargaining unit
work, the District violated its obligation under
section 3543.5 (c) to negotiate in good faith with the exclusive
representative. Derivative violations of sections 3543.5(a)
and (b) also are found. San Francisco Community College
District, supra.
REMEDY
Under section 3541.5 (c) of EERA, the Public Employment
Relations Board has :
. . the power to issue a decision and
order directing an offending party to cease
and desist from the unfair practice and to
take such affirmative action . 	as will
effectuate the policies of this chapter.
Since it has been found the District committed an unfair
practice by unilaterally contracting out bargaining unit work
without first negotiating with the exclusive representative, it
6

is appropriate to order the District to cease and desist from
taking unilateral actions on matters within the scope of
representation without first affording CSEA an opportunity to
negotiate.
Affirmative relief also is necessary to restore the
status quo and give CSEA the negotiating opportunity it would
have had but for the District's unilateral action.
Accordingly, the District will be ordered to rescind its
unilateral action of contracting out the cleaning work, and
will be ordered to restore the work to classified employees of
the District. Of course, before any future change, the
District must give CSEA an opportunity to negotiate beforehand.
It also is appropriate that the District be required to
post a notice incorporating the terms of the order. The notice
should be subscribed by an authorized agent of the Arcohe Union
School District indicating that it will comply with the terms
thereof. The notice shall not be reduced in size. Posting
such a notice will provide employees with notice that the
Arcohe Union School District has acted in an unlawful manner
and is being required to cease and desist from this activity
and to restore the status quo. It effectuates the purposes of
the EERA that employees be informed of the resolution of the
controversy and will announce the Arcohe School District's
readiness to comply with the ordered remedy. See Placerville
Union School District (9/18/78) PERB Decision No. 69. In
7

Pandol and Sons v. ALRB and UFW (1979) 98 Cal . App. 3d 580, 587,
the California District Court of Appeal approved a posting
requirement. The U.S. Supreme Court approved a similar posting
requirement in NLRB v. Express Publishing Co. (1941)
312 U.S. 426 [8 LRRM 415] .
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in the case, and pursuant to section
3541.5(c), it is hereby ordered that the Arcohe Union School
District and its representatives shall:
1. 	CEASE AND DESIST FROM:
Unilaterally contracting out bargaining unit work or
making other changes in matters within the scope of
representation without first affording CSEA an opportunity to
negotiate.
2 . 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
(a) Refill the two custodial positions replaced by
the contracting out with District classified employees, to be
part of the bargaining unit represented by CSEA.
(b) Within five (5) workdays after this decision
becomes final, prepare and post copies of the NOTICE TO
EMPLOYEES attached as an appendix hereto, for at least thirty
(30) workdays at its headquarters offices and in conspicuous
places at the location where notices to classified employees
are customarily posted. It must not be reduced in size and

reasonable steps should be taken to see that it is not defaced,
altered or covered by any material.
(c) Within twenty (20) workdays from service of the
final decision herein, give written notification to the San
Francisco Regional Director of the Public Employment Relations
Board of the actions taken to comply with this order. 	Continue
to report in writing to the regional director thereafter as
directed. All reports to the regional director shall be
concurrently served on the Charging Party herein.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
become final on December 13, 1982, unless a party files a
timely statement of exceptions. In accordance with the rules,
the statement of exceptions should identify by page citation or
exhibit number the portions of the record relied upon for such
exceptions. 	See California Administrative Code title 8,
part III, section 32300. Such statement of exceptions and
supporting brief must be actually received by the Public
Employment Relations Board at its headquarters office in
Sacramento before the close of business (5:00 p.m. ) on
December 13, 1982, or sent by telegraph or certified United
States mail, postmarked not later than the last day for filing
in order to be timely filed. See California Administrative
Code, title 8, part III, section 32135. 	Any statement of
exceptions and supporting brief must be served concurrently

with its filing upon each party to this proceeding. Proof of
service shall be filed with the Board itself. See California
Administrative Code, title 8, part III, sections 32300 and
32305 as amended.
Dated: November 22, 1982
GERALD A. BECKER
Administrative Law Judge
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